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[see paragraphs 63 and 85 of the judgment] 2. Interception of communications (a) Was there any interference with an Article 8 right? The one admitted interception of a telephone call to which Mr. Malone was a party involved an "interference" with the exercise of his right to respect for his private life and his correspondence. In addition, as a suspected receiver of stolen goods, Mr. Malone was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. This being so, the existence in England and Wales of laws and practices which permit and establish a system for carrying out secret surveillance of communications amounted in itself to such an "interference", apart from any concrete measures taken against him. [see paragraph 64 of the judgment] (b) Were these interferences "in accordance with the law"? (i) General principles The expression "in accordance with the law" in paragraph 2 of Article 8 means firstly that any interference must have some basis in the law of the country concerned. However, over and above compliance with domestic law, it also requires that domestic law itself be compatible with the rule of law. It thus implies that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1. The Court accepted the Government's contention that the requirements of the Convention cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are in other contexts. Thus, the "law" does not have to be such that an individual should be enabled to foresee when his communications are likely to be intercepted so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens in general an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. Furthermore, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the substantive law itself, as opposed to accompanying administrative practice, must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. [see paragraphs 66 to 68 of the judgment] (ii) Application of those principles to the particular facts 18
It was common ground that the settled practice of intercepting communications on behalf of the police in pursuance of a warrant issued by the Secretary of State was lawful under the law of England and Wales. There were, however, fundamental differences of view between the Government, the applicant and the Commission as to the effect, if any, of certain statutory provisions in imposing legal restraints on the manner in which and the purposes for which interception of communications may lawfully be carried out. The Court found that, on the evidence adduced, in its present state domestic law in this domain is somewhat obscure and open to differing interpretations. In particular, it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive. In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking. The Court therefore concluded that the interferences found were not “in accordance with the law" within the meaning of paragraph 2 of Article 8. [see paragraphs 69 to 80 of the judgment] (c) Were the interferences “necessary in a democratic society” for a recognised purpose? Undoubtedly, the existence of some law granting powers of interception of communications to aid the police may be "necessary" for prevention of disorder or crime". However, “in a democratic society'' the system of secret surveillance adopted must contain adequate guarantees against abuse. In the light of its conclusion under (b), the Court considered that it did not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 and whether the system complained of furnished those guarantees in the particular circumstances. [see paragraphs 31 to 82 of the judgment] 3. "Metering" of telephones The records of metering contain information, in particular the numbers dialled, which is an integral element in the communications made by telephone. Consequently, release of that information to the police without the consent of the subscriber amounts to an interference with the exercise of a right guaranteed by Article 8. The applicant was potentially liable to be directly affected by the practice which existed in this respect. Despite the clarification by the Government that the .police had not caused his telephone to be metered, the applicant could claim to be the victim of an interference in breach of Article 8 by reason of the very of the practice. No rule of domestic law makes it unlawful for the telephone service to comply with a request from the police to make and supply records of metering. Apart from this absence of prohibition, there would appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authorities. Consequently, so the Court found, although lawful in terms of domestic law, the resultant interference was not "in accordance with the law", within the meaning of paragraph 2 of Article 8. 19
Page 1: DP (2006) CASE LAW CASE LAW OF THE
Page 4 and 5: 12. Murray v. The United Kingdom, j
Page 6 and 7: statements made by an MP subsequent
Page 9: JUDGMENTS OF THE EUROPEAN COURT OF
Page 12 and 13: home and correspondence) and Articl
Page 14 and 15: - the lack of notification of surve
Page 16 and 17: 2. Malone v. The United Kingdom, ju
Page 20 and 21: This finding removed the need for t
Page 22 and 23: 3. Leander v. Sweden, judgment of 2
Page 24 and 25: public authorities are empowered to
Page 26 and 27: For further information, reference
Page 28 and 29: B. Proceedings before the Commissio
Page 30 and 31: D. Application of Article 50 1. Pec
Page 32 and 33: 5. Kruslin v. France, judgment of 2
Page 34 and 35: The Court pointed out, firstly, tha
Page 36 and 37: [See paragraph 40 of the judgment a
Page 38 and 39: 13. Miss B., wishing to marry her f
Page 40 and 41: II. THE MERITS A. Alleged violation
Page 42 and 43: 50. In the Government’s opinion,
Page 44 and 45: (b) Documents 59. (a) The applicant
Page 47 and 48: 7. Lüdi v. Switzerland, judgment o
Page 49 and 50: een aware of. Moreover, the applica
Page 51 and 52: 8. Niemietz v. Germany, judgment of
Page 53 and 54: 2. In the Court's opinion, the inte
Page 55 and 56: 9. Funke v. France judgment of 25 F
Page 57 and 58: B. Proceedings before the European
Page 59 and 60: 1. "In accordance with the law” T
Page 61 and 62: Matscher (Austrian) , Mr L.E. Petti
Page 63 and 64: 10. Hoffmann v. Austria, judgment o
Page 65 and 66: The Court therefore accepted that t
Page 67 and 68: Article 50 "If the Court finds that
Page 69 and 70:
B. Proceedings before the European
Page 71 and 72:
In accordance with the Convention,
Page 73 and 74:
3. Mrs Murray was arrested by the A
Page 75 and 76:
4. The level of "suspicion" require
Page 77 and 78:
arrest and detention of persons sus
Page 79 and 80:
13. Z. v. Finland, judgment of 25 F
Page 81 and 82:
the Court have jurisdiction to ente
Page 83 and 84:
(iii) Duration of the confidentiali
Page 85 and 86:
14. Halford v. The United Kingdom,
Page 87 and 88:
2. The office telephones: (i) exist
Page 89 and 90:
15. Anne-Marie Andersson v. Sweden,
Page 91 and 92:
Accordingly, it transpired from the
Page 93 and 94:
In May 1992 the Social Insurance Of
Page 95 and 96:
Accordingly, it appeared from the v
Page 97 and 98:
Procedure Act (“the FCPA”) whic
Page 99 and 100:
Secondly, tapping and other forms o
Page 101 and 102:
18. Valenzuela Contreras v. Spain,
Page 103 and 104:
exercise of his right to respect fo
Page 105 and 106:
19. Lambert v. France, judgment of
Page 107 and 108:
The second requirement which derive
Page 109 and 110:
20. Fressoz and Roire v. France , j
Page 111 and 112:
The Court had in particular to dete
Page 113 and 114:
21. Lustig-Prean and Beckett v. The
Page 115 and 116:
were not in question. Insofar as th
Page 117 and 118:
public order aims pursued by the Go
Page 119 and 120:
Matti Pellonpää (Finnish), Presid
Page 121 and 122:
23. Amann v. Switzerland, judgment
Page 123 and 124:
was the surveillance of persons sus
Page 125 and 126:
24. Rotaru v. Romania, judgment of
Page 127 and 128:
As to the Government’s submission
Page 129 and 130:
25. Khan v. The United Kingdom, jud
Page 131 and 132:
26. P.G. and J.H. v. The United Kin
Page 133 and 134:
evidence was heard by the judge alo
Page 135 and 136:
27. Krone Verlag Gmbh & Co. KG v. A
Page 137 and 138:
28. Mikulić v. Croatia, judgment o
Page 139 and 140:
means enabling an independent autho
Page 141 and 142:
30. Christine Goodwin v. the United
Page 143 and 144:
Though the Court did not underestim
Page 145 and 146:
31. M.G v. the United Kingdom, judg
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32. Taylor-Sabori v. the United Kin
Page 149 and 150:
33. Allan v. the United Kingdom, ju
Page 151 and 152:
34. A. v. the United Kingdom, judgm
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in the reporting of parliamentary p
Page 155 and 156:
35. Peck v. the United Kingdom, jud
Page 157 and 158:
The application was lodged with the
Page 159 and 160:
36. Odièvre v. France (application
Page 161 and 162:
child’s, and subsequently the adu
Page 163 and 164:
37. Perry. v. the United Kingdom, j
Page 165 and 166:
The Court noted that the photograph
Page 167 and 168:
The main task of the Court was to a
Page 169 and 170:
The Court noted that the matters co
Page 171 and 172:
The applicant complained under Arti
Page 173 and 174:
On 16 and 26 September 2003 the Pre
Page 175 and 176:
43. Wisse v. France, judgment of 20
Page 177 and 178:
44. Turek v. Slovakia , judgment of
Page 179 and 180:
violation of his right to respect f
Page 181 and 182:
Ms Segerstedt-Wiberg is the daughte
Page 183 and 184:
that background, the Court found th
Page 185 and 186:
the Security Police whether to advi
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parquet, au motif que la présentat
Page 189 and 190:
41. Enfin, la Cour estime que les i
Page 191 and 192:
interception of telecommunications
Page 193 and 194:
egards the monitoring of individual
Page 195 and 196:
5. the counterfeiting of money (Gel
Page 197 and 198:
amended G 10 Act. The federal legis
Page 199 and 200:
sentence, no notification was given
Page 201 and 202:
Moreover, the first applicant had f
Page 203 and 204:
80. Such interferences are justifie
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Law or arbitrariness in its applica
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106. The Court reiterates that when
Page 209 and 210:
measures remained in force for a fa
Page 211 and 212:
applied and data be transmitted if
Page 213 and 214:
(see above, paragraph74). She relie
Page 215 and 216:
151. The Court observes that in the
Page 217 and 218:
48. Panteleyenko v. Ukraine (no. 11
Page 219 and 220:
The Court also noted that the appli
Page 221:
The applicant complained about the
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